Reseller Agreement Terms & Conditions
This Energy Terrain Reseller Agreement (the "Reseller Agreement") is between the applicable reseller ("you" or "Reseller"), and Energy Terrain Pty Ltd (ABN #27622256035). If you are agreeing to this Reseller Agreement not as an individual but on behalf of your company, then "Reseller" or "you" means your company, and you are binding your company to this Reseller Agreement.
This Reseller Agreement is a separate agreement from the agreement that Energy Terrain has with its customers (as may be modified by Energy Terrain from time to time, "Energy Terrain Solar Power Purchase Agreement”). For convenience and consistency, however, the definitions of certain terms related to our products or services and services will be the same as those in the Energy Terrain Solar Power Purchase Agreement.
This Reseller Agreement does not have to be signed in order to be binding. You indicate your assent to the terms by proposing Energy Terrain Products or Services to a customer.
1. Order Requirements
To the extent that we make Products or Services available for resale, you must provide all of the requested information including, outlined in the Project Details shown in Appendix A of the Reseller Agreement document. All such information must be accurate and complete and must reflect bona fide orders you have received from customers.
2. Limited Right to Resell
Subject to this Reseller Agreement, we grant you a one-time, non-exclusive, non-transferable right to resell the Products or Services specified in your “Solar PPA Proposal'” (also known as SD3) to the customer specified in the “Energy Terrain Solar Power Purchase Agreement” (also known as “Final Offer Document” or “SD4”), solely for use by such customer in accordance with the Energy Terrain Solar Power Purchase Agreement. This right to resell does not apply to any other customer or Products or Services (including without limitation any sale to any related party, organisation or affiliate, or to any subsequent, additional or renewal sale to the same party).
3. Enforcement of Energy Terrain Energy Terrain Solar Power Purchase Agreement
3.1. Customer Terms. All use of the Products or Services by customers is subject to the Energy Terrain Solar Power Purchase Agreement, and you may not purport to impose any other terms pertaining to their use of the Products or Services. You are responsible for ensuring that each customer enters into the Energy Terrain Solar Power Purchase Agreement in a manner that is legally binding upon the customer. This may require you to (a) notify the Energy Consumer and the Landlord that Energy Terrain products or services are subject to the Energy Terrain Solar Power Purchase Agreement and that by placing an order with Reseller the customer agrees to the Energy Terrain Solar Power Purchase Agreement, and (b) obtain from each customer written confirmation of acceptance of the Energy Terrain Solar Power Purchase Agreement prior to the acceptance of the order by Energy Terrain or delivery of the Product. Evidence of such acceptance by the customer to Energy Terrain that an order has been taken is required in the form of a fully executed Energy Terrain Solar Power Purchase Agreement.
3.2. Enforcement Cooperation. You agree to immediately notify us of any known or suspected breach of the Energy Terrain Solar Power Purchase Agreement or other unauthorized use of the Products or Services and to assist us in the enforcement of the terms of the Energy Terrain Solar Power Purchase Agreement.
4. Identification as Reseller
Subject to this Reseller Agreement, you are permitted to identify yourself as an Energy Terrain "Reseller" solely in connection with your resales of Products or Services. You may not use any Energy Terrain trademark, logo or service mark ("Energy Terrain Marks") except as permitted by Energy Terrain. All goodwill arising from your use of Energy Terrain Marks inures to the benefit of Energy Terrain.
5. Payment and Delivery
5.1. Fees. Energy Terrain must pay the fees to the Reseller as set out in the commission structure table of the Reseller Agreement.
Your invoice to Energy Terrain is due within 10 days from the date the installation is deemed complete by Energy Terrain, typically this will be once the installation generates billable energy. The fees are exclusive of any GST.
If you provide any feedback, comments, suggestions, ideas, description of processes, or other information to us about or in connection with the Products or Services or our Reseller program, including without limitation any ideas, concepts, know-how or techniques contained therein ("Feedback"), then you grant us a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, without any compensation to you or any restriction or obligation on account of intellectual property rights or otherwise. For clarity, no Feedback will be deemed your Confidential Information, and nothing in this Reseller Agreement (including without limitation Section 13 (Confidentiality)) limits Energy Terrain's right to independently use, develop, evaluate, or market products or services , whether incorporating Feedback or otherwise.
7. No Use Rights; Energy Terrain Reserved Rights
Only the customer of the Products or Services may use the Products or Services. You are not permitted to use any Products or Services resold under this Reseller Agreement for your own benefit. To the extent that you nevertheless gain any access to the Products or Services, all license restrictions in the Energy Terrain Solar Power Purchase Agreement apply to you. Notwithstanding anything to the contrary contained in this Reseller Agreement, except for the limited resale right in Section 2 above, Energy Terrain and its suppliers have and will retain all rights, title and interest (including without limitation all patent, copyright, trademark, trade secret and other intellectual property rights) in and to all Products or Services, service descriptions, documentation, and underlying Intellectual Property ("Energy IP"), and all copies, modifications and derivative works thereof, including without limitation as may incorporate Feedback. You acknowledge that you are obtaining only a limited right to resell the Products or Services and that irrespective of any use of the words "purchase", "sale" or like terms hereunder no ownership rights are being conveyed to you under this Reseller Agreement or otherwise.
8. Reseller Obligations and Liability
8.1. Customer Relationships; Business Practices. You agree not to represent yourself as an agent or employee of Energy Terrain and agree that we will have primary control over any customer communication regarding the Products or Services once the customer Signs a Solar Power Purchase Agreement. You will not make any representations regarding Energy Terrain, on Energy Terrain’s behalf, or about any Products or Services. You agree not to engage in any deceptive, misleading, illegal, or unethical practices that may be detrimental to Energy Terrain or its products or services and agree to comply with all applicable federal, state and local laws and regulations while operating under this Reseller Agreement, including without limitation the U.S. Foreign Corrupt Practices Act and any similar laws or regulations in any applicable jurisdiction. You further agree to comply with all applicable export and import laws and regulations, including U.S. embargo and sanctions regulations and prohibitions on export for certain end uses or to certain users.
8.2. Indemnity. You are fully responsible for all liabilities and expenses of any type whatsoever that may arise on account of your resale of Products or Services. You will indemnify, hold harmless and (at Energy Terrain’s option) defend Energy Terrain from and against any claim, loss, cost, liability or damage, including attorneys’ fees, for which Energy Terrain becomes liable arising from or relating to: (a) any breach or alleged by you of any term of this Reseller Agreement, (b) the issuance by you of any warranty or representation regarding Energy Terrain or its products or services not specified in the Energy Terrain Solar Power Purchase Agreement, or (c) any of your other acts or omissions in connection with the marketing or resale of the products or services under this Reseller Agreement.
9.1. Termination. We may terminate this Reseller Agreement if you materially breach any provision in this Reseller Agreement and fail to cure such breach within five (5) days of written notice of such breach. In addition, either party may terminate this Reseller Agreement for any reason or no reason upon thirty (30) days’ written notice to the other party. Energy Terrain may also terminate this Reseller Agreement immediately upon notice to you if (a) it ceases to offer the current Reseller program or (b) it reasonably believes that continuing hereunder could result in business or legal liability for Energy Terrain or otherwise harm Energy Terrain or its customers.
9.2. Effect of Termination. You expressly agree that Energy Terrain will have no obligation or liability to you resulting from termination or expiration of this Reseller Agreement in accordance with its terms. Upon termination or expiration of this Reseller Agreement: (a) you must immediately cease identifying yourself as an Energy Terrain Reseller and using Energy Terrain Marks in connection with your resale activities hereunder, (b) you must destroy all Confidential Information in your possession and certify destruction (unless we request that you return such materials to us) and (c) Sections 5 (Payment and Delivery) (but only with respect to Energy Terrain Solar Power Purchase Agreements executed during the Term), 6 (Feedback) and 7 (No Use Rights; Energy Terrain Reserved Rights) through 15 (General) will survive.
10. Post-agreement restraints – non-solicit
For a period of 6 months after the Reseller's engagement with Energy Terrain has been terminated for whatever reason, the Reseller agrees that it will not: canvass, solicit or endeavour to entice from Energy Terrain any person or organisation that was a customer or supplier of Energy Terrain at the end of the Term (or whose business or custom Energy Terrain was cultivating at the end of the Term), in relation to whom the Reseller regularly dealt with during the Term; canvass, solicit or endeavour to entice any employee or agent of Energy Terrain to terminate their contracts of employment or agency with Energy Terrain; interfere or seek to interfere with the relationship between Energy Terrain and its customers, suppliers and employees. induce any other person to perform any of the acts specified in this clause.
The Reseller acknowledges that any breach by the Reseller of this clause would cause irreparable harm and significant damage to Energy Terrain and accordingly that Energy Terrain has the right to seek and obtain immediate injunctive relief in relation to any such breach.
The Reseller acknowledges that the covenants in respect of non-competition contained in this clause are fair and reasonable and that Energy Terrain is relying upon this acknowledgement in entering into this agreement.
11. Changes to Agreement
From time to time, we may modify this Reseller Agreement. The version of this Reseller Agreement in place at the time you submit each Solar Power Purchase Agreement is the version that will govern such order. We will use reasonable efforts to notify you of these changes through communications through our website or other forms of communication, but we also suggest that you bookmark this Reseller Agreement and read it periodically.
Except as otherwise set forth in this Reseller Agreement, each party agrees that all inventions, know-how, business, technical and financial information it obtains (as "Receiving Party") from the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Energy Terrain IP and any performance information relating to the products or services shall be deemed Confidential Information of Energy Terrain without any marking or further designation. Except as expressly authorised herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
13. Energy Terrain Commitments; DISCLAIMER OF WARRANTIES
For the avoidance of doubt, any and all commitments, indemnities and other terms and conditions offered by Energy Terrain with respect to use of the Products or Services are made directly by Energy Terrain to the customer in accordance with the Energy Terrain Solar Power Purchase Agreement and do not extend to you as a Reseller. We make NO WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, TO you as a RESELLER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE AND NON-INFRINGEMENT.
14. Reseller's Indemnity & Liability
14.1 Resellers Indemnity. The Reseller will be responsible for and indemnify Energy Terrain against liability for all loss, damage or injury to any person or property caused by the Reseller, in the course of providing the Services. The amount of any claims, damages, interest, costs and expenses (including without limitation all related legal costs incurred by Energy Terrain) which may be paid, suffered or incurred by Energy Terrain in respect of such loss, damage or injury must be made good at the Reseller's expense and may be deducted from any moneys, paid, due or becoming due to the Reseller.
14.2 Limitation of liability. Subject to the Reseller' Indemnity clause above, your liability in damages (including special, indirect or consequential damages, which damages will be deemed to include loss or revenue, loss or profit and opportunity loss) in respect of any negligent act or omission of you in connection with your obligations under this agreement will not exceed the total moneys due or becoming due to the Reseller. The Reseller' Indemnity clause above does not apply in relation to liability for personal injury or death, property damage, an infringement of confidentiality or Intellectual Property Rights, or a breach of the Compliance with laws clause (8) contained in this agreement (if applicable).
15. Dispute Resolution; Governing Law
Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any question regarding its existence, validity or termination, shall be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration shall be Melbourne, Australia. The language of the arbitration shall be English.
This agreement is governed by, and is to be construed and take effect in accordance with, the laws of Victoria. Each party irrevocably and unconditionally submits to the non exclusive jurisdiction of the courts of Victoria.
This Reseller Agreement is the entire agreement between you and Energy Terrain relating to the resale of Energy Terrain products or services as described in this Reseller Agreement and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or Services or any other subject matter covered by this Reseller Agreement. If any provision of this Reseller Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Reseller Agreement may not be modified or amended except as described in Section 11 (Changes to Agreement) or otherwise with the written agreement of Energy Terrain (which may be withheld in its complete discretion without any requirement to provide reasons). As used herein, "including" (and its variants) means "including without limitation" (and its variants). If either party to this Reseller Agreement breaches any provision of this Reseller Agreement relating to Confidential Information or intellectual property rights, there may not be an adequate remedy available solely at law; therefore, an injunction, specific performance or other form of equitable relief or monetary damages or any combination thereof may be sought by the injured party to this Reseller Agreement. No failure or delay by the injured party to this Reseller Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent Resellers. This Reseller Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give one party the express or implied right, power or authority to create any duty or obligation of the other party.
Should you have any questions concerning this Reseller Agreement, or if you desire to contact Energy Terrain for any reason, please contact us.